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[2026] ZAGPJHC 873
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eNL Mutual Bank v Ubits Technology Solutions (Pty) Ltd and Others (2026/103211) [2026] ZAGPJHC 873 (31 July 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO:
2026-103211
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHERS JUDGES: NO
(3)
REVISED: NO
31
July 2026
In the matter between:
eNL
MUTUAL
BANK
Applicant
and
UBITS
TECHNOLOGY SOLUTIONS
(PTY)
LTD
First Respondent
MUNEERAH
MALEK
Second Respondent
SAUD
ALLY
Third Respondent
JUDGMENT
NXUMALO, AJ
Introduction
[1] The applicant
brings this application before the urgent Court seeking to have the
respondents declared to be in contempt
of the order granted by this
Court on or about 21 May 2026 under the above case number. The order
in question has been dubbed “the
prior order” by the
parties. For the sake of convenience, I shall adopt the same
terminology when referring to that order.
[2] The relevant
parts of the prior order, as presented by the applicant during
argument, are the following:
(a) the respondents
were directed to provide the applicant, by Saturday, 23 May
2026 at 17h00 and
for purposes of audit
(my emphasis), the
items included in annexure “eNL 1A” which was annexed to
the Court order;
(b) the respondents
were directed to cooperate with the Auditors appointed by the
applicant should they (the Auditors) need
access to documentation for
purposes of the audit, by Saturday, 23 May 2026 at 17h00 from the
date of receipt of the said request.
[3] It is these two
orders of the prior order that the applicant is alleged to not have
complied with.
[4] It is evident
from their wording that the two orders were concerned with ensuring
that the applicant receives all the
necessary documents and records
to enable it to comply with its audit obligations. It is also
necessary to point out that the prior
order was made by agreement
between the parties.
Urgency
[5] As mandated by
Rule 6(12) of the Uniform Rules of this Court, it was incumbent upon
the applicant to convince this Court
that the application was urgent,
prior to the merits of the matter being entertained.
[6] The applicant
contended that every day that the respondents refuse to comply with
the prior order causes continuing prejudice
to it. It further stated
that it remains under statutory and regulatory obligations to
complete its audit and submit audited financial
statements to the
Prudential Authority and that the refusal of the respondents prevents
the applicant from fulfilling these obligations,
and risks the
applicant falling foul of the Prudential Authority and possibly
losing its license.
[7] It is alleged
that the event that triggered the applicant’s dash to the
urgent Court was the termination of the
applicant’s access to
and use of the Payflo system by the respondents on 18 July 2026. The
applicant had initially been granted
access to the Payflo system by
virtue of a written Software licence agreement (“the licence
agreement”) between the
first respondent and an entity known as
YWBN Investments (Pty) Ltd (“YWBN Investments”) which is
not a party to these
proceedings.
[8] The licence
agreement was terminated by the first respondent on 17 July 2026. The
termination had been preceded by a letter
of demand sent by the first
respondent to the applicant on 17 June 2026 notifying the applicant
of the first respondent’s
intention to terminate the licence
agreement if YWBN Investments failed to remedy its breach of the
licence agreement within 30
days of the demand.
[9] It is contended
by the respondents that YWBN Investments and the applicant knew from
17 June 2026 what would happen if
YWBN Investments failed to remedy
its breach of the licence agreement.
[10] The difficulty
with the relief sought by the applicant is that it has failed to
specify in its papers which parts of
the prior order the respondents
had failed to comply with.
[11] When pressed
during argument, counsel for the applicant stated that the only part
that has not been complied with is
the part referred to in paragraph
9 of annexure “eNL 1A” to the prior order, which directed
the respondents to grant
access to information, systems, records,
platforms, reports and supporting documentation on the Payflo system
to the individuals
named therein.
[12] It is stated
in annexure “eNL 1A” that all requested information and
access rights should be provided in
full from inception to date of
the prior order, unless otherwise specified.
[13] As already
mentioned above, the purpose of the prior order was to ensure that
the applicant receives all the information
required by its Auditors
in order for the applicant to meet its audit obligations. It was
submitted by counsel for the respondents,
correctly so in my view,
that the access to the Payflo system provided for in the prior order
was for audit purposes only and no
other reason.
[14] The
respondents also correctly point out that despite the applicant
alleging that access to the Payflo system was essential
to complete
the statutory audit, the applicant failed to identify which specific
information, reports, date or functionality were
allegedly
inaccessible. There was no identification of any outstanding audit
item which the respondents had allegedly refused to
provide.
[15] If anything,
the respondents provided an email by the applicant’s current
Auditors in which they confirm that they
have been provided with all
the records requested by them.
[16] This then begs
the question: which fire pertaining to its audit obligations is the
applicant trying to douse through
this application, which was brought
on truncated timeframes. The answer to this question unfortunately
cannot be found in the applicant’s
papers. The applicant’s
counsel’s submissions were also of no particular assistance in
this regard.
[17] As far as the
truncated timeframes are concerned, it is necessary to mention that
the respondents had proposed to the
applicant that the matter be
enrolled for hearing on Tuesday, 4 August 2026, to enable the parties
sufficient time to prepare a
complete set of papers prior to having
the matter heard. This offer was refused by the applicant.
[18]
The procedure set out in Rule 6(12) is not just there for the taking.
An applicant has to set forth explicitly the circumstances
which it
avers render the matter urgent and why it could not be afforded
substantial redress in the ordinary course.
[1]
[19] This means
that the applicant cannot merely treat the issue of urgency as a
sideshow. Before the Court can entertain
the application on the
merits, it must be satisfied that the applicant has met all the
requirements set out in Rule 6(12).
[20]
On 4 October 2021, the former Deputy Judge President of this Court,
in a bid to curb the abuse of the Urgent Court process
and prevent
the cluttering up of the urgent Court roll, issued directives with
regards to urgent matters enrolled in this Court
(“the
directives”).
[2]
[21] The directives
contained the following relevant provisions:
“…
the
ultimate practical test as to whether to set down a matter as urgent
is whether an irreparable harm is apparent
if
an order is not granted in that week;
if there is none, it ought not to appear on the roll.”
–
(par. 5 of directives) (my emphasis).
[22] This matter
sadly fits into the above category. There is no irreparable harm that
could be detected from the applicant’s
papers, and certainly
none could be demonstrated by the applicant’s counsel during
argument, if the order sought by the applicant
is not granted in this
week. It therefore follows that this matter ought not to have
appeared in this week’s urgent Court
roll, which was so
cluttered that it required the diligent services of at least five
judges to work through it.
[23]
There is
a
clear duty on an applicant who does not comply with the provisions of
the practice directives of the Court to supply a proper
explanation
for its non-compliance. The applicant has failed to do so.
[3]
[24] A further
fatal complication to the applicant’s case is the material
dispute of fact that exists on the progress
made in complying with
the prior order. The respondents contend that they have complied with
the prior order and have provided
extensive correspondence exchanged
between them and the applicant and/or its auditors, in compliance
with the prior order. It is
therefore evident that even on the
merits, the applicant stands little to no chance of succeeding with
the contempt relief sought
against the respondents.
[25] To hold the
respondents in contempt, the applicant was required to, at the very
least, demonstrate which parts of the
prior order the respondents
have failed to comply with. The applicant did not do so.
[26] The applicant
was not able to point to any example of requests for records that
were made to the respondents by the Auditors,
which the respondents
failed to satisfy.
[27]
This dispute of fact is fatal to the applicant’s case as it
goes to the heart of the matter.
[4]
Conclusion
[28]
In light of the above, the applicant’s application ought to be
struck off the roll for lack of urgency.
[29]
The following order is therefore made:
1.
the
application is struck off the roll for lack of urgency;
2.
the
applicant shall pay the costs, which shall include the costs of
senior counsel, on the party and party scale C.
NS NXUMALO
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
Appearances
For the
applicant:
Adv L Tshigomana
Instructed
by:
Katlego Ralikhuvhana Mokgola Inc
For the
respondents:
Adv ARG Mundell SC
Instructed
by:
Ayoob Kaka Attorneys
Date of
hearing:
29 July 2026
Date of
judgment:
31 July 2026
This Judgment is handed
down electronically by circulation to the parties’ legal
representatives by email and publication
on Case Lines and SAFLII.
The date for the handing down is deemed to be 10am on 31 July 2026.
[1]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty)
Ltd and Others
[2011]
ZAGPJHC 196 (23 September 2011) [6]
[2]
Notice
to All Legal Practitioners about the Urgent Motion Court,
Johannesburg (4 October 2021)
[3]
In
re
:
Several Matters on the Urgent Court Roll
2013 (1) SA 549
(GSJ) [9]
[4]
WIA
Investments SA (Pty) Limited v Robile and Others
(2025//012813) [2025] ZAGPJHC 119 (17 February 2025)
[5]
– [7]